Protect the Peninsula's Future v. City of Port A.

175 Wash.App. 201

304 P.3d 914

PROTECT THE PENINSULA'S FUTURE, Clallam County Citizens for Safe Drinking Water, and Eloise Kailin, Appellants/Cross–Respondents,

v.CITY OF PORT ANGELES, and City Of Forks, Respondents/Cross–Appellants.

No. 43252–8–II.

Court of Appeals of Washington, Division 2.

June 19, 2013.

Gerald Barclay Steel, Attorney at Law, Olympia, WA, for Appellant/Cross–Respondent.

William Rodney Fleck, City of Forks, Forks, WA, P. Stephen Dijulio, Roger A. Pearce, Foster Pepper PLLC, Seattle, WA, William E. Bloor, City of Port Angeles, Port

Angeles, WA, for Respondent/Cross–Appellant.

Gerald Barclay Steel, Attorney at Law, Olympia, WA, Amicus Curiae on behalf of Our Water Our Choice.

WORSWICK, C.J.

[175 Wash.App. 205]¶ 1 Protect the Peninsula's Future, Clallam County Citizens for Safe Drinking Water, and Eloise Kailin (collectively, Kailin) filed a complaint for a search warrant under RCW 69.41.060, claiming that fluoride is a legend drug and that the city of Port Angeles and the city of Forks (collectively, the Cities) unlawfully added fluoride to their public drinking water systems. The trial court denied Kailin's motion to amend the complaint and dismissed it for failure to state a claim upon which relief can be granted. Kailin appeals, arguing that (1) the dismissal for failure to state a claim was unwarranted because fluoridated water is a legend drug under RCW 69.41.010 and because the State Board of Health promulgated two regulations that violate the supremacy clause of the United States Constitution, art. VI, cl. 2, and (2) the trial court erroneously denied her motion to amend the complaint. Two amici, Our Water–Our Choice! and Washington Action for Safe Water, jointly filed a brief supporting Kailin. In their cross appeal, the Cities argue that the trial court erred by denying their request for sanctions and attorney fees.

¶ 2 Following oral argument, we ordered supplemental briefing on the issue of whether RCW 69.41.060 creates a private cause of action for a search warrant. Order RequiringSupplemental Briefing, Protect the Peninsula's Future v. City of Port Angeles, No. 43252–8–II (Wash.Ct.App. Feb. 19, 2013); seeRAP 12.1(b). Holding that RCW 69.41.060 does not create a private cause of action and that the trial court properly denied both Kailin's motion to amend the complaint and the Cities' request for sanctions, we affirm.

FACTS

¶ 3 The city of Port Angeles and the city of Forks each operate public drinking water systems. Both Cities add fluoride compounds to the drinking water; Port Angeles adds fluorosilicic acid, and Forks adds bulk sodium fluoride.¹

¶ 4 Kailin applied for a warrant pursuant to RCW 69.41.060.² She sought a warrant commanding a peace officer to search certain facilities belonging to the Cities and seize their fluorides and related equipment. ³ Kailin averred that the fluorides are legend drugs under chapter 69.41 RCW, that the United States Food and Drug Administration (FDA) regulates the use of the fluorides to prevent disease in humans, that fluoridated drinking water prevents the disease of dental caries (tooth decay), and that the Cities lacked FDA approval to fluoridate their water systems.

¶ 5 In an ex parte proceeding, the superior court denied the warrant application. The court found probable cause to believe that the Cities stored and used fluorides at the facilities. However, the court ruled “[t]here is not probable cause to believe a crime is being committed ... and the issues raised need to be publicly litigated with due process afforded to all parties before any searches or seizures are justified.” Clerk's Papers (CP) at 265.

¶ 6 Kailin then commenced this action by filing a “certified complaint for search and seizure warrants,” naming herself as plaintiff and the Cities as defendants. CP at 257. Like the ex parte application, Kailin's complaint relied on RCW 69.41.060 and sought a warrant commanding peace officers to search the Cities' fluoridation facilities and seize fluoride compounds and fluoridating equipment. The complaint also sought statutory costs and fees, as well as any other just and equitable relief.

¶ 7 On June 7, 2011, the Cities filed a motion to dismiss Kailin's complaint under CR 12(b)(6) and CR 12(c), arguing that (1) Kailin's complaint failed to state a claim upon which relief may be granted and (2) the Cities were entitled to judgment on the pleadings. The Cities also asked the trial court to sanction Kailin under CR 11 and to award reasonable attorney fees and costs incurred in defending a frivolous suit under RCW 4.84.185. On June 10, Kailin moved to amend the complaint to request a declaration that the Cities' fluorides meet the statutory definition of “drugs.” CP at 204.

¶ 8 The trial court denied Kailin's motion to amend, reasoning that the amendment would be futile. The trial court then granted the Cities' motion to dismiss Kailin's complaint under CR 12(b)(6). But the trial court declined to sanction Kailin or award attorney fees, explaining that Kailin was “acting in good faith and arguing for a good faith change to the law, but [her] remedy is with the Legislature, not with the courts.” Verbatim Report of Proceedings (VRP) at 40.

¶ 9 Kailin sought direct review by our Supreme Court. The Cities cross appealed. The Supreme Court transferred the case to us. Order, Protect the Peninsula's Future v. City of Port Angeles, No. 86224–9 (Wash. Mar. 27, 2012).

ANALYSIS

I. Dismissal of Kailin's Complaint

¶ 10 Kailin argues that the trial court erred by dismissing her complaint for failure to state a claim upon which relief can be granted. We disagree.

A. Standard of Review

¶ 11 In an appeal from a trial court's dismissal of a complaint for failure to state a claim upon which relief can be granted, our review is de novo. ⁴San Juan County v. No New Gas Tax, 160 Wash.2d 141, 164, 157 P.3d 831 (2007). In reviewing a CR 12(b)(6) dismissal, we presume the truth of the allegations in the complaint and may consider hypothetical facts not included in the record. Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998). Such dismissals are appropriate only in unusual cases where, on the face of the complaint, there is an insuperable bar to relief. San Juan County, 160 Wash.2d at 164, 157 P.3d 831.

B. RCW 69.41.060 Creates No Private Cause of Action

¶ 12 Kailin argues that RCW 69.41.060 creates a private cause of action. We disagree.⁵

¶ 13 As an initial matter, we recognize that the parties correctly characterize this action as a civil action. Citing the example of City of Seattle v. McCready, 123 Wash.2d 260, 868 P.2d 134 (1994), Kailin argues that a complaint commencing a civil action is a proper means of applying for a statutorily authorized search warrant. We agree that an action for a search warrant is a civil action in rem, and it is distinct from a criminal prosecution against an individual. State v. Twenty Barrels of Whiskey, 104 Wash. 382, 387, 176 P. 673 (1918); State v. Great N. Ry. Co., 98 Wash. 197, 198, 201, 167 P. 103 (1917); see Furnia v. Grays Harbor County, 158 Wash. 619, 626–27, 291 P. 1111(1930).

¶ 14 However, Kailin further argues that RCW 69.41.060 allows any person to allege a civil cause of action for a warrant to search for legend drugs held in violation of chapter 69.41 RCW. This argument ignores the distinction between a private cause of action and a public cause of action, and this distinction is critical to determining who may bring an action to enforce a statute. See Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). A civil action for a search warrant is a public cause of action because it is brought by “the state in the exercise of its police powers as plaintiff, as in other cases of violation of the criminal laws.” Great N. Ry., 98 Wash. at 201, 167 P. 103;see Davis, 442 U.S. at 241, 99 S.Ct. 2264. But because Kailin brought her complaint as a private person, she cannot maintain a public cause of action.

¶ 15 Thus the question is whether RCW 69.41.060 creates a private cause of action that allows Kailin to sue for a search warrant. Kailin asserts that the statute implies a private cause of action. We disagree.

¶ 16 RCW 69.41.060 provides, in relevant part:

If, upon the sworn complaint of any person, it shall be made to appear to any judge of the superior or district court that there is probable cause to believe that any legend drug is being used, manufactured, sold, bartered, exchanged, given away, furnished or otherwise disposed of or kept in violation of the provisions of this chapter, such judge shall, with or without the approval of the prosecuting attorney, issue a warrant directed to any peace officer in the county, commanding the peace officer to search the premises designated and described in such complaint and warrant, and to seize all legend drugs there found ... and to safely keep the same....

[175 Wash.App. 210]¶ 17 Washington courts recognize that a statute may create an implied private cause of action when the legislature did not expressly provide an adequate remedy for violations of statutory rights. Cazzanigi v. Gen. Elec. Credit Corp., 132 Wash.2d 433, 445, 938 P.2d 819 (1997); Bennett v. Hardy, 113 Wash.2d 912, 919–20, 784 P.2d 1258 (1990). To determine whether a statute creates an implied private cause of action, we examine three factors: (1) whether the plaintiff is a member of the class for whose “especial” benefit the legislature enacted the statute, (2) whether explicit or implicit evidence of legislative intent supports recognition of a private cause of action, and (3) whether an implied private cause of action is consistent with the statute's underlying purpose. Bennett, 113 Wash.2d at 920–21, 784 P.2d 1258. All three of the Bennett factors are lacking here.

1. Chapter 69.41 RCW Confers No Especial Benefit on Any Class

¶ 18 First, Kailin is not a member of a class for whose especial benefit the legislature enacted chapter 69.41 RCW...